Around 17,282 habitations in India do not have a primary school within 1 km, 148,696 government schools still do not have a building, 165,742 have no drinking water, 455,561 schools have no toilets, and around 114,531 primary schools are single-teacher schools. Where does that leave the Right to Education, which has been notified by only 9 states 15 months on?

If there is one law in the country that promised a lot only to belie it the next moment, it is the Right of Children to Free and Compulsory Education Act, 2009, popularly called the Right to Education (RTE) Act. In terms of non-performance, it can be compared to the overambitious and inherently abortive Article 45 in the Directive Principles of the Constitution which read: “The state shall endeavour to provide, within a period of 10 years from the commencement of this Constitution, for free and compulsory education for all children until they complete the age of 14 years.”

However, there’s a big difference between the straight talk of the erstwhile Article 45 and the indecisive construction of its counterpart. The newly-inserted Article 21 A (Right to Education) in the Fundamental Rights chapter reads: “The state shall provide free and compulsory education to all children of the age of six to 14 years in such manner as the state may, by law, determine.”

Several striking differences between the two stand out. The new dispensation, though embellished now as a Fundamental Right, enables the state to bypass not only a definite commitment in terms of time or manner of ensuring universalisation of elementary education but also its obligation towards early childhood education for children in the 0-6 age-group. In other words, whatever the Indian state does or refrains from doing on the elementary education front can be justified under “in such manner as the state may, by law, determine”!

The Right to Education Act came into force on April 1, 2010, covering the entire country except Jammu and Kashmir, as per Central Gazette Notification dated February 19, 2010. Theoretically, this meant that all provisions under the Act, including norms and standards for would-be schools, should have been in place across the country on the day of its commencement. But everyone, including primary stakeholders in the new law -- education administrators, teachers, school managements, parents -- was caught unawares. Then came the notification of central rules, made on April 8, 2010, as required under Section 38 of the Act, applicable to concerned educational authorities of the Centre and union territories. It’s worthwhile to mention here that no state came forward voluntarily, as required under the above section, to frame the necessary rules for operationalising provisions of the Act in their respective domains. Only after the draft Model Rules for the States was circulated in February 2010 by the Centre, along with a favourable hint at fund sharing between the Centre and the states, did some states begin to mull implementation of the Act, albeit with a lot of hesitation and doubts that persist to this day.

More than a year on, implementation of the RTE Act across India presents as wretched a picture as existed at the moment of its commencement. According to the official release ‘Status of Implementation of RTE Act, 2009, in States/UTs as on 15.3.2011’ (http://ssa.nic.in/rte/8Status..RTE.pdf), only nine states out of 29 (Andhra Pradesh, Arunachal Pradesh, Chhattisgarh, Haryana, Madhya Pradesh, Manipur, Orissa, Rajasthan and Sikkim) have notified the rules, a statutory obligation under the Act. And only two of the six union territories (Andaman and Nicobar Islands, and Chandigarh). Interestingly, according to the release, no data could be ascertained in this respect from Goa and the union territory of Dadra and Nagar Haveli!

Another mandatory provision -- the State Commission for Protection of Child Rights (SCPCR) that’s supposed to be in place as the monitoring authority and highest appellate body for grievance redressal, according to Sections 31 and 32 of the Act -- has been complied with by only one-third of the states, says the release. That means only 11 in all, namely Assam, Bihar, Chhattisgarh, Delhi, Jammu and Kashmir, Madhya Pradesh, Maharashtra, Mizoram, Orissa, Rajasthan and Sikkim. Broadly speaking therefore, two-thirds of India still remains outside RTE Act 2009 -- a fact that not only makes this particular law a joke but casts doubts on the law-framing calibre of Indians.

Slow progress in compliance apart, the situation on the ground remains bleak. Even Human Resources Development Minister Kapil Sibal, who appears to be fanatically committed to the RTE Act, had to admit to some stark realities afflicting the Act whilst releasing its first-year report card on April 1, 2011. Though he started off on a note of optimism, Sibal couldn’t but put on record: “It’s unfortunate that 81,50,619 children in the age-group six to 14 are still out of school and there’s a shortage of 508,000 teachers country-wide… 21% of teachers were found to be without professional qualification and 9% of schools had only a single teacher… only 2.74 lakh classrooms have been provided till now against 14.25 lakh planned within three years.” He also conceded to a lackadaisical approach by the states/union territories in complying with the statutory obligation to put the rules and SCPCRs in place. Sibal concluded by saying: “This is just the first year. Things will be better next year.”

A day before the release of the official report card, a coalition of civil society organisations calling itself RTE Forum presented a first-year stocktaking report on the progress of the RTE Act. At the stocktaking meeting, where Shantha Sinha, chairperson of the National Commission for Protection of Child Rights was chief guest, Ambarish Rai, spokesperson for the Forum, took a swipe at the official release saying: “It is a shame that one year after the enforcement of the (RTE) Act we have yet to get off the ground on key provisions. The dream of universal education remains a distant reality.” The Forum report dubbed the official figures a gross exaggeration, or gross underestimation depending on whether the government sought to hype or hide the facts. For instance, the enrolment figures quoted by the government should be read with caution, as ‘school figures generally depict enrolment and not attendance’. A child might have enrolled in the last year, but he/she might not have attended any classes at all since there is no compulsion for this as a criterion for class promotion under the RTE Act (Section 16). Similarly, the official figure for child labour is 12.6 million (children who are perforce out of school), a fact that renders the official figure of 8.1 million out-of-school children a gross underestimation. Moreover, the stocktaking report estimates the national shortage of teachers to be 1.4 million as against the official figure of 508,000, with the state of Uttar Pradesh alone requiring 200,000 teachers.

Interestingly, the stocktaking report of April 1, 2011 observed that the Act had remained a non-starter because of grossly inadequate budgetary provisions attenuated by Centre-state disputes over who would pay for rolling it out countrywide. Previous estimates drawn up by the National University of Education Planning and Administration (NUEPA) -- the basis of financial planning for RTE provisions -- had pegged the requirement at Rs 171,000 crore. Revised estimates drawn up by the Expenditure Finance Committee (EFC) of the Ministry of Finance, on July 28, 2010, after factoring in teachers’ salaries under the existing Sarva Shiksha Abhiyan (SSA) pattern, however, put the total cost for the next five years at a staggering Rs 231,000 crore. Of this, Rs 24,000 crore will come through the Finance Commission’s allocation to state governments. The remaining (Rs 207,000 crore) will be shared by the Centre and the states based on a 68:32 formula. However, most state governments struggling with ballooning budget deficits are pressing for a larger central contribution, to the extent of 90% of the total. And, as if adding salt to the wound, in Union Budget 2011-12 presented to Parliament on February 28, Finance Minister Pranab Mukherjee allocated a mere Rs 21,000 crore to the Sarva Shiksha Abhiyan-cum-RTE programme, Rs 13,000 crore short of the HRD ministry’s demand of Rs 34,000 crore which itself is inadequate to meet the share already committed by the Centre.

It’s fair to say therefore that consistently low budgetary allocations by the Centre coupled with Centre-state squabbles over the sharing ratio have marred implementation of the RTE Act over the last year.

CRY (Child Relief and You), a civil society group working with child rights, has, in a year-end review of the RTE Act’s progress, highlighted certain fundamental snags that have dogged its operationalisation. According to CRY, many children still don’t go to school simply because there isn’t one to go to. Around 17,282 habitations in India do not have a primary school within 1 km of the habitation. As regards infrastructure, 148,696 government schools still do not have a building, 165,742 have no drinking water, 455,561 schools have no toilets. Around 114,531 primary schools are single-teacher schools. The Act has not made any visible dent in these infrastructural deficits during its first year of implementation.

CRY also observes: “The Act itself says that local self-governments should be empowered to play a role in governing education, which is ignored by all but two states in the state rules for the RTE Act.” It is interesting to note that a major portion of allocations to education are earmarked for the Sarva Shiksha Abhiyan which is the main vehicle for implementation of the RTE Act. However, CRY’s analysis points out that government allocation to the SSA has increased only by 10.53%, most of which comes from the 2% education cess on central taxes. Allocations for the SSA from sources other than the education cess have gone down from Rs 7,769.10 crore (Revised Estimate 2010-11) to Rs 7,096.15 crore (Budget Estimate 2011-12). Insufficient budget is an issue that has always plagued RTE implementation.

Puja Marwaha, CEO, CRY, draws attention to another crucial gap in the Act. According to her, even though the Act was proclaimed as revolutionary, it left out practically half of India’s children -- those below six and between the ages of 14 and 18 -- from its purview.

Chairperson of the NCPCR, Shantha Sinha, who is the chief monitoring authority with respect to RTE implementation at the national level, drew attention to a serious anomaly that exists between RTE Act, 2009 and the Child Labour (Prohibition and Regulation) Act, 1986. According to the Child Labour Act, only employment of child labour in hazardous occupations is a cognisable offence; employment in non-hazardous occupations is permissible subject to regulation (vide Section 7). Given such a peculiar provision, the vast majority of children continue to work in various ‘permissible’ occupations, thereby remaining out of education despite it being free and compulsory for every child under the RTE Act. Under the circumstances, Sinha argues for drastic amendment to the Child Labour Act making employment of children in any occupation a cognisable offence.

The RTE Act has been subject to several serious challenges in various high courts and the Supreme Court, especially from associations of unaided private schools, over Section 12 of the Act which mandates these schools to reserve 25% of their seats for students from weaker and disadvantaged sections. They justifiably argue that given the government’s obligation to bear only the officially fixed per-pupil expenditure of these children, their parents cannot afford to pay the rest of the sum charged by the school. Further, there is a great deal of confusion among private schools and implementing officials due to the absence of clear guidelines as to what syllabus and evaluation pattern an unaided private school shall adopt with respect to reserved students. With no respite in the ever-growing parade of court litigations challenging the principles and provisions of the RTE Act, and a weak defence by the concerned governments, the possibility of the Act being declared ultra vires by the apex court in the near future cannot be ruled out.

In a situation where neither Centre nor state is sincere in the RTE Act’s implementation, a deliberate and surreptitious move is now on to dilute and defraud the Act of whatever standards and norms it prescribes with respect to various inputs to ensure quality education. For instance, according to a schedule in the Act, the pupil-teacher ratio for Classes 1 to 5 should be 1:30; for Classes 5 to 8 it should be 1:35. Section 25 (1) required all concerned authorities to put this ratio in place as a matter of course. But within six months of the Act’s notification, most state governments complained of difficulties in ensuring compliance with the ratios. Heeding their complaint, the Department of School and Mass Education issued a guideline, on June 22, 2010, diluting the mandatory ratios mentioned in the schedule. The guideline suggested that the concerned states “rationalise the deployment of existing teachers to address the problems of urban-rural and other spatial imbalances in teacher placements”. In other words, abandon the mandatory pupil-teacher ratios as provided under the Act.

The day is not far off when the nation will realise the truth about the RTE Act. As eminent educationist Anil Sadgopal said a few years ago: “It is a fraud on our children. It gives neither free education nor compulsory education. In fact, it only legitimises the present multilayered, inferior quality school education system where discrimination shall continue to prevail.”